Regina v J W S Rose [No 10]

[2001] NSWSC 1060

CITATION:	Regina v J W S Rose [No 10] [2001] NSWSC 1060
CURRENT JURISDICTION:	Common Law Criminal Division
FILE NUMBER(S):	SC 70032/01
HEARING DATE(S):	14/09/01 19/09/01 02-04/10/01 08-11/10/01 15-19/10/01 22-25/10/01 29-31/10/01 01/11/01 05-09/11/01 12-16/11/01
JUDGMENT DATE:	22 November 2001
PARTIES :	Regina Jeffrey William Spencer Rose
JUDGMENT OF:	Kirby J

COUNSEL :	C Maxwell QC (Crown) J Stratton (Accused)
SOLICITORS:	S E O'Connor - Crown Solicitor D J Humphries - LAC (Accused)
CATCHWORDS:	CRIMINAL PRACTIE & PROCEDURE - Direction to Jury on Identification - Request by Crown for a warning concerning identification evidence where such evidence is favourable to accused.
LEGISLATION CITED:	Evidence Act 1995 - s116 & s165
CASES CITED:	Jamison, Elliot & Blessington (1992)60 A Crim R 68 R v Baker [2001] NSWCCA 151 R v Baartman [2000] NSWCCA 298 R v Stewart [2001] NSWCCA 260 R v Lewis (CCA, unreported, 8.9.98) R v Clout (1995) 41 NSWLR 312 R v Lowe (1997) 98 A Crim R 300
DECISION:	Ref para 14

IN THE SUPREME COURT
OF NEW SOUTH WALES
criminal DIVISION

KIRBY J

22 November 2001

70032/01 - REGINA v Jeffrey William Spencer ROSE

Judgment [No 10] - Direction on Identification

1 KIRBY J: An issue arose during the trial in respect of which I gave a ruling, undertaking to later provide reasons. This judgment contains those reasons.

2 The Crown foreshadowed a request under s165(2)(a) of the Evidence Act, 1995 for a warning that certain evidence may be unreliable. The evidence was from a witness who identified the deceased at a time, and in circumstances, inconsistent with the Crown case.

3 It is the Crown case that the deceased went to the accused’s flat at about 5.00 pm on 30 April 1982. She was travelling to Brisbane by bus that evening. The bus was scheduled to leave at 11.00 pm. She was supposed to meet friends beforehand at the New England Hotel. When she did not appear at the hotel, her friends became concerned. They went to the flat of Mr Rose, arriving at about 10.45 pm. Mr Rose answered the door. He told the deceased’s friends that his wife was not there, and that she had “gone off with a young bloke” at about 6.30 pm.

4 The disappearance of Mrs Kristine Rose received considerable publicity. Within three days of her disappearance, on 3 May 1982, Mr Dawson came forward. He was the proprietor of the Centrepoint Laundromat in Armidale. He told the police that he had seen the photograph of the missing woman on television. He recognised her. She had been to his laundromat between 9.00 pm and 9.30 pm on the night that she disappeared (30 April 1982). He spoke to her. She told him that she was on her way to Brisbane by bus.

5 Mr Dawson was again interviewed on 26 May 1982, after the body of Kristine Rose had been found in a creek bed six kilometres from Armidale. He said that he was certain that the woman in the photograph was the woman in the laundromat.

6 The Crown relies upon s165(1)(b) of the Evidence Act, 1995, which is in these terms:

“s165(1) Unreliable evidence
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
(b) identification evidence; .... ”

7 Once a party requests a warning, the Judge is obliged to provide that warning (s165(2)(a)), unless there are good reasons for not doing so (s165(3)).

8 Mr Stratton contends that the warning should not be given. He points to the definition of “identification evidence” in the Dictionary which accompanies the Act. Identification evidence is the identification of the accused. The definition is as follows:

“Identification evidence means evidence that is:
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:

(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done;
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such assertion.”

9 Mr Stratton suggests that the asymmetry in the Act is quite deliberate. It is consistent with the approach taken with respect to accomplice evidence. In respect of that part of an accomplice’s evidence that may support an accused, no accomplice direction should be given (Jamison, Elliot and Blessington (1992) 60 A Crim R 68; Gleeson CJ with whom Lee AJ and Hope AJA agreed; R v Baker [2001] NSWCCA 151, per Ipp AJA, para 27).

10 The argument has some force. However, I think the better view is that a warning under s165 is appropriate. I take that view for a number of reasons. First, providing a warning is consistent with the purpose of s165. If I may be forgiven for quoting my own judgment (with which Spigelman CJ and Smart AJ agreed), the purpose was stated in R v Baartman [2000] NSWCCA 298, in these terms: (at para 62)

“In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence, or because there is the danger that the jury may over-estimate the probative value of certain evidence (see ALRC 26, Vol 1, para 1017)…..”

11 Secondly, identification evidence is specifically dealt with in s116 of the Act. If Mr Stratton’s argument were right, s165(1)(b) has little or no work. Section 116(1)(a) and (b) mirror the requirements of s165(2)(a), (b) and (c). I think the better view is that s116 is the specific provision dealing with identification of defendants in criminal trials. Section 165 is the general provision. It is not confined to criminal proceedings (contrast s165(1)(d) and (e) with s165(1)(g)). It includes situations analogous to the various categories identified in s165(1), where the danger of the evidence is not obvious and the purposes of s165 are served (such as the identification of a motor vehicle, or objects) (R v Clout (1995) 41 NSWLR 312, per Kirby ACJ (with whom Allen and Dowd JJ agreed); R v Lowe (1997) 98 A Crim R 300, per Hunt CJ at CL, esp 314 to 318).

12 Thirdly, the generality of s165 is reinforced by the opening words. The section applies to evidence “of a kind that may be unreliable” (cf R v Stewart [2001] NSWCCA 260; esp Howie J). There follows the words “including the following kinds of evidence”, with a list of seven classes of evidence. The list is not exhaustive (Beazley JA (with whom Wood CJ at CL and Sperling J agreed) in R v Lewis (CCA, unreported, 8.9.98) at p17)). The combined force of these two expressions (“of a kind that may be unreliable” and “including the following kinds of evidence”) authorises the use of analogy.

13 Here, the same considerations that may make the evidence of an eye witness identifying an accused unreliable, apply to the identification by Mr Dawson of the deceased. The need to acquaint a jury, with matters of which they may otherwise be unaware, applies equally to such evidence.

14 Having said that, it must be acknowledged that the matter is not free from doubt. This has been a long trial, and one postponed for almost two decades. I believe that caution is warranted. In the circumstances, I will not tell the jury, in terms, that the evidence of identification may be unreliable. Rather, I will draw to their attention the need to consider the reliability of such evidence, and the sorts of issues that they may think appropriate to address.

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Last Modified: 11/23/2001